EEA national rights-dependency
The case of VN (EEA rights-dependency) Macedonia [2010] UKUT 380 (IAC) concerned the right of residence of family members and the dependency needed to be established in accordance with Directive 2004/38/EC.
< 00004000 p>Case summary:
The appellant was a citizen of Macedonia applying for a residence card as confirmation of his rights as an extended family member of an EEA national. The EEA National was his brother in law, an Italian national exercising his Treaty rights in the UK. The respondents (home office) refused his application on the basis that he had not shown that he was a dependant on his brother in law either since or before his arrival in the UK. The appellant appealed against the decision and the Immigration Judge, whilst ultimately dismissing the appeal, accepted the appellant was dependant on the EEA national since his arrival in the UK, the appellant having arrived in 2007 on a visitor's visa.
In relation to the appellant's situation prior to his arrival in the UK, the immigration judge did not accept that he had been dependant on his brother in law. The EEA brother in law had never lived with the appellant in Macedonia nor had he provided any direct financial support to him. The determination notified 17th February 2010 dismissed the appellant's appeal. The appellant subsequently appealed and was granted permission to appeal against the decision. The Immigration Judge considered the three main authorities on extended family members namely; KG (Sri Lanka) and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13, Bigia and Ors and SM (India) v Entry Clearance Officer (Mumbai) [2009 EWCA Civ 1426. He also considered the leading judgement of Metock when reaching a decision.
The Immigration Judge confirmed that the appellant did not have to live with his brother in law prior to arriving in the UK quoting Maurice Kay LJ in the case of Bigia and Ors where it was stated that: "the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directivea".
Therefore, the first Immigration Judge erroneously attached too much weight to the fact that the appellant had not resided with his EEA brother in law when considering whether he was dependant on him. However, the first Immigration Judge's findings on whether the appellant was financially dependent on the EEA brother in law prior to arrival in the UK were correct as the appellant could not show that he had been dependant on him for monetary support. The question to be considered in the case therefore, was whether the first judge had materially erred in his decision. The Immigration Judge held that clear that "both the Directive and the 2006 Regulations require, in the case of OFMs, that dependency must be shown both in the country of origin and in the host Member State".
Reference was made to reg 8(2)(c) which requires an applicant to show that the extended family member who has joined the EEA national in the United Kingdom "continues to be dependent upon him or to be a member of his household". Therefore, it was held that the use of the word "continues" denotes that the dependency must have existed in the recent past and must still exist once in the UK.
Reference was also made to the case of Pedro [2009] EWCA Civ 1358 however, it was distinguished in that, it did not apply to other family members as defined by Article 3.2(a) of the Directive. The case held that in order to establish a right of residence, the OFM is required to show both dependence in the country from which they came from and continuing dependence in the UK.
